Back Bench Business Debate, Westminster Hall, 22nd March 2023
This is a briefing from Protect, the UK’s whistleblowing charity. We advise around 2,500 whistleblowers a year via our free, confidential legal advice line. We help employers develop effective whistleblowing arrangements and we campaign for improvements in whistleblowing law and policies.
We are also campaigning for a wider review of whistleblowing arrangements: Protect was instrumental in drafting the Public Interest Disclosure Act (PIDA) 1998 but this is now 25 years old and needs updating to reflect the change in the employment landscape and the way we work today – and will work in the future.
The importance of whistleblowing
Whistleblowing is a public good: people speaking up in the workplace stop harm, help employers manage risk, hold organisations and governments to account, and protect the public interest.
Thanks to whistleblowers we have learned about fatal abuses in healthcare settings such as the Mid Staffordshire tragedy and corporate wrongdoing at companies who tendered for UK government and public sector contracts like Carillion. The global impact of whistleblowers such as the doctor who alerted authorities to the emergence of a new virus in Wuhan cannot be underestimated.
Every year Protect speaks to thousands of workers from all walks of life ; from teachers raising safeguarding concerns to nurses worried about patient safety, from charity workers concerned about poor governance, to transport workers raising health and safety workplace concerns.
The need for reform, not repeal
PIDA is the landmark legislation that provided the first legal protections for whistleblowers in UK law but now struggles to reflect the modern workplace. PIDA sits as a piece of employment law, and gives workers the right not to be victimised, dismissed or forced from their job for raising public interest concerns to their employer, regulators, MPs and in some situations to the media.
PIDA is no longer internationally gold-standard and does not reflect the modern workplace in Britian, but we believe the right approach is to reform the law, rather the repeal it. In our view, employment rights need to be strengthened, not removed.
Under PIDA it is unlawful to victimise a whistleblower who makes a protected disclosure.
Despite this, thousands of whistleblowers face bullying, side-lining or even the loss of their job because they are brave enough to speak up when they witness wrongdoing or something that could cause public harm. Protect has drafted our own Bill to amend PIDA and we are calling for three key reforms to ensure that whistleblowing in the UK is not only the right thing to do but a safe course of action. We hope to see that the Government, in its promised review of the whistleblowing legal framework, will look to retain and reform PIDA rather than repeal the law.
1 Extend the scope of protection
Over the 25 years since PIDA became law, the employment landscape – with a growth in self-employment and the gig economy – is now very different. Protect believes that PIDA must be updated to broaden the scope of those who wish to highlight wrongdoing and potentially avoid harm to others.
In particular, whistleblower protection should be extended to job applicants (only NHS job applicants are currently protected), to non-executive directors, charity trustees and volunteers, and to contractors working for companies – it is often these people who are the first to spot wrongdoing, but currently have no remedy if they suffer as a result of whistleblowing.
2 Legal standards for all employers to ensure concerns are addressed
There is nothing in PIDA that requires employers to respond when concerns are raised by whistleblowers. This is a key fear of whistleblowers – that nothing will be done – and this leads many to remain quiet and the risks go unheeded. Over 40% of callers to Protect’s advice line during Covid said that the public interest concerns they raised were ignored when they came forward. The assumption that they will not be believed or will not see an improvement in their situation is a huge disincentive to blow the whistle. Many employers do not even have a whistleblowing policy: our research with YouGov found only 43% say their employer has a whistleblowing policy, and only 31% of the adults sampled say they know how to raise concerns.
To address this, we want to see a duty on all employers (of at least 50 staff) to acknowledge and investigate concerns, to feedback to whistleblowers on the outcomes of investigations and to train staff in speaking up, and managers in how to listen and respond effectively.
3 Improving access to justice
Many of the criticisms of PIDA are common to all those pursuing employment claims – an inequality of arms, complex law and short time frames to bring claims – all of which can – and should – be reformed across the piece, not just for whistleblowing rights. Specific amendments to PIDA could be made to shift the burden of proof to the employer, to simplify the test for dismissal, or to provide legal aid for whistleblowers, thus rebalancing the law in the whistleblower’s favour.
Protect’s view on an Office of the Whistleblower
Protect believes the proposed Office of the Whistleblower (OWB) could make a valuable contribution to ensuring concerns raised with employers or with regulators are addressed – it could set and enforce whistleblowing standards. However, if an OWB were to be established, safeguards should be put in place to ensure it does not divert funds or resources away from the key work currently done by regulators and other bodies which oversee whistleblowing claims. While we recognise that regulators have faced criticism, a single OWB could not replace over 90 bodies currently appointed as “prescribed persons” without very significant resources and expertise across all sectors from health, transport, financial services, education etc. We would also like to see existing mechanisms improved and greater consistency and transparency in how regulators respond to whistleblowers.
Please consider participating in the debate on March 22nd.
Please speak to us about how you can support calls for a promised review of the current whistleblowing framework and help enact secondary legislation to futureproof PIDA for future generations of whistleblowers
Protect can provide your office and constituents with advice on whistleblowing and the legal protections that exist.
For more information, please contact :
Andrew Pepper Parsons, Head of Policy : andrew@protect-advice.org.uk
Elizabeth Mistry, Parliamentary Affairs : elizabeth.mistry@protect-advice.org.uk